' SH. ABDUR RASHID, J.---Riasat Ali appellant was tried in case F.I.R. No,142, dated 23-4-2000 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order IV of 1979 read with section 9(c) the Control of Narcotic Substances Act, '1997 of Police Station, Muridke by Mr. Zahoorul Haq Rana, Additional Sessions Judge, Ferozewala and vide judgment, dated 20-1-2001 was convicted to 10 years R.I. With a benefit of section 382-B, Cr.P.C. Feeling aggrieved, the appellant has filed this Criminal Appeal No, 297 of 2001 challenging his conviction.
2. Briefly stated the facts of the prosecution case are that on 23-4-2000 at 4 p.m. Inspector S.H.O. Of Police Station, Muridke alongwith his subordinate police officials had on spy information raided and apprehended the appellant in the area of Chak No,29 and recovered from his possession Charas weighing 20 kgs. Opium weighing 12 kgs.; out of the said quantity of Charas and Opium 10 grams each were made into a sealed parcel for chemical analysis. 20 kgs. Charas and 12 kgs. Opium were taken into possession vide memo. Exh.P.B. Which was attested by Muhammad Afzal and Shehbaz Ali A.S.-1s. The sealed parcels containing 10 grams of opium and 10 grams Charas were sent to the office of the Chemical Examiner for analysis whose report tendered in evidence as Exh.P.D.
Confirmed the contents to be of Charas and opium respectively. Upon conclusion of the investigation the appellant was challaned to face trial. He was charged under Articles 3/4 of Prohibition (Enforcement of Hadd) Order IV of 1979 to which he pleaded not guilty and claimed to be tried.
3. The prosecution produced Ghulam Rasool S.-I. P.W.1 Muhammad Afzal A.S.-I. P.W.2, Shehbaz Ali, S.-I., P.W.3, Muhammad Ramzan Constable P.W.4, Muhammad Rashid Inspector/Investigating Officer P.W.5, Bashir Ahmad Head Constable, P.W.6, in support of his case. After tendering the report of the Chemical Examiner Exh.P.D. The prosecution case was closed.
4. The statement of the accused under section 342, Cr.P.C. Was recorded in which he repudiated the incriminating evidence put to him and he opted to produce his defence evidence.
5. Zulfiqar Ali and Muhammad Azam appeared as D.W.1 and D.W.2 respectively and they both stated that the appellant was apprehended by the police party from a medical store where he had come to take some medicine. Upon conclusion of the trial the appellant was convicted to 10 years'
R.I.
6. It has been mainly argued by the learned counsel for the appellant that the case property i,e, 20 kgs. Of Charas and 12 kgs. Of opium which were allegedly recovered from the appellant had not been produced in Court and proved in evidence and that incriminative report of Chemical Examiner Exh.P.D. Which is the main Plank of prosecution case against he appellant has not been put to him in his statement under section 342, Cr.P.C. To afford him an opportunity of explaining the main incriminating material against him and that the trial Judge while charging the appellant under Articles 3/4 of Prohibition (Enforcement of Hadd) Order IV of 1979 and section 9(c) of the Control of Narcotic Substances Act, 1997 had not mentioned in his judgment the section under which the appellant had been convicted and that various other illegalities committed during the course of the trial would vitiate the trial. It has also been argued that there is no legal material or evidence on the file to support the appellant's conviction.
7. Muhammad Rashid Inspector who had apprehended the appellant and recovered narcotic substances while appearing as P.W.5 stated that he had taken into possession 20. Kgs. Of Charas and 12 kgs. Of opium from the appellant and 10 grams each contents were made into a sample in sealed parcel vide memo,. Exh.P.B..Thereafter he prepared complaint Exh.P.A. Which was sent to the police station for registration of the case and. Then the investigation of this case was entrusted to Ghulam Rasool, S.-I. He admitted in his cross-examination that parcels of narcotic were prepared at the spot and were handed over to the said Investigating Officer on the same day. Muhammad Afzal, A.S.-I. Who attested the recovery memo. Exh.P.B. Also stated in his evidence that the case property was delivered to Ghulam Rasool S.-I. Who arrested the accused; and searched his person and found Rs,700 from his pocket which were taken into possession vide memo. Exh.P.C.
8. Ghulam Rasool S.-I. While appearing as P.W.1 stated that S.H.O. Delivered to him four sealed parcels containing 20 kgs. Charas and 12 kgs. Opium. Out of the said quantity 10 grams each were taken and handed over to Moharrir of the police station for safe custody. He did not depose about the fate of remaining narcotic substance. He also did not state that the remaining quantity of narcotic was delivered, by him to Moharrir Head Constable. In fact Moharrir Head Constable while appearing as P.W.6 stated that he was delivered only one sealed parcel containing samples which he delivered to Muhammad Ramzan Constable for its onward transmission to the office of Chemical Examiner at Lahore. Thus the prosecution evidence is absolutely silent about the fate of the narcotics allegedly recovered from the appellant (20 kgs. Charas and 12 kgs. Of opium). It is also not known where the said narcotics were kept in Malkhana and then these had not been produced in the Court during trial. Unless the recovered narcotics were produced in Court it could not be held that the appellant was carrying these with his person and these were recovered from him. Non-production of the case property in the Court is fatal to the prosecution case and destroys its very foundation.
9. We find that the report of Chemical Examiner which declares the contents of sample sealed parcels to be that of opium and Charas is the main incriminating material against the appellant.
This is also a basis of the prosecution case. This report had not been put to the appellant in his statement under section 342, Cr.P.C. And thus he had not been afforded an opportunity to explain the said incriminative evidence.
10. Where an in criminative 'piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. Then it cannot be read against him for his conviction. As the Chemical Examiner Report has not been put to the appellant in his statement under section 342, Cr.P.C. And if the same is discarded then prosecution has no case against the appellant.
' In view of the above facts and discussion the prosecution has failed to prove its case against the accused. Therefore, we accept the appeal, set aside the impugned judgment and acquit the appellant of the charges. The accused shall be released from jail forthwith if not required in any other case.